Rajeev Goel, Delhi V. ACIT, Circle- 47(1), New Delhi

ITA 1184/DEL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9637 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2014-2015
• Appeal Filed On: 14-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURENDRA PALSR
• Assessee Lawyers: NISHCHAY KANTOAR; VED JAIN SHRI AKSHIT GOEAL
• Keywords: Assessment record; Reason to believe
• Section: 142(1); 292BB; 143(2); 147; 148; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI F BEN CH, NEW DELHI BEFORE SHRI T.S. KAPOOR, ACCOUNTANT MEMBER, AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER, ITA NO.1184/DEL/2019 [ASSESSMENT YEAR: 2014-15] RAJEEV GOEL, M/S S.B.G. & CO. CHARTERED ACCOUNTANTS, 9, ATTA-UR- REHMAN LANE, CIVIL LINES, DELHI-110054 ACIT, CIRCLE-47(1), NEW DELHI, PAN- AWMPG2245H APPELLANT RESPONDENT APPELLANT BY SHRI VED JAIN, SHRI AKSHIT GOEAL & SHRI NISHCHAY KANTOAR RESPONDENT BY SHRI SURENDRA PAL-SR. DR DATE OF HEARING 23/09/2019 DATE OF PRONOUNCEMENT 26/09/2019 ORDER PER T.S. KAPOOR, ACCOUNTANT MEMBER THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-16, NEW DELHI, DATED 18/12/2018, FOR ASSESSMENT YEAR 2014-15. THE ASSESSEE HAS TAKEN A NUMBER OF GR OUNDS BOTH ON LEGAL ISSUES AND ON MERITS OF THE CASE. HOWEVER, DU RING THE COURSE OF PROCEEDINGS BEFORE US, ONLY GROUND NO.1, WHICH IS O N LEGAL ISSUE OF NON-SERVICE OF NOTICE U/S 143(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) WAS ARGUED WHICH FOR THE SA KE OF COMPLETENESS IS REPRODUCED BELOW. 2 ITA NO. 1184/DEL/2019 THAT NO NOTICE U/S 143(2), OF THE INCOME TAX ACT, 1961, ISSUED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER THE ASSESSEE, WAS SERVED UPON THE ASSESSEE ON OR BEFORE THE TIME LIMIT STIPULATED IN THE PROVISO TO SECTION 143 (2) OF THE ACT AND, THEREFORE, THE ASSESSMENT ORDER IS ILLEGAL, UN JUSTIFIED AND VOID AB INITIO. 2. THE LD. AR AT THE OUTSET, SUBMITTED THAT ASSESS EE IN THIS CASE HAS BEEN ASSESSED BY THE ASSESSING OFFICER, CI RCLE-47(1), NEW DELHI WHO IS THE ASSESSING OFFICER OF THE ASSESSEE AND WHO HAS NOT ISSUED AND SERVED THE STATUTORY NOTICE U/S 143(2) O F THE ACT. THE LD. AR SUBMITTED THAT DURING THE COURSE OF ASSESSMENT P ROCEEDINGS ITSELF, THE ASSESSEE HAD OBJECTED TO THE ASSESSMENT PROCEED INGS BEING WITHOUT STATUTORY NOTICE U/S 143(2) AND HAD FILED A FFIDAVIT BEFORE THE ASSESSING OFFICER CLAIMING THEREIN THAT NO NOTICE U /S 143(2) WAS SERVED AND IN THIS RESPECT OUR ATTENTION WAS INVITE D TO PAGE 3 OF THE ASSESSMENT ORDER WHERE THE ASSESSING OFFICER HIMSEL F HAS REPRODUCED THE AFFIDAVIT FILED BY THE ASSESSEE. IT WAS SUBMITT ED THAT THE ASSESSING OFFICER CLAIMED THAT NOTICE U/S 143(2) WAS DULY ISS UED AND WAS SERVED UPON THE ASSESSEE AND HE HAS SCANNED THE REC EIPT OF THE SPEED POST ALONG WITH TRACKING HISTORY OF THE ENVELOPE CO NTAINING NOTICE AND HAS REPRODUCED THE SAME IN THE ASSESSMENT ORDER ITS ELF. THE LD. AR SUBMITTED THAT THE ADDRESS MENTIONED IN THE NOTICE IS B-37, MAHARANA PRATAP ENCLAVE, PITAMPURA DELHI-110034, WH ICH MEANS THAT THE SAID NOTICE WAS TO BE DISPATCHED AT THE AB OVE NOTED ADDRESS. 3 ITA NO. 1184/DEL/2019 IN THIS RESPECT, THE LD. AR TOOK US TO PAGE 253, WH ERE A COPY OF SAID NOTICE WAS PLACED. THE LD. AR THEN TOOK US TO PAPER BOOK PAGE 254 WHERE THE TRACKING REPORT OF INDIA POST WAS PLACED AND IN WHICH THE DESTINATION PIN CODE 110006, WAS MENTIONED. THE LD. AR SUBMITTED THAT INSTEAD OF SENDING THE NOTICE AT PIN CODE-1100 34 TO THE ASSESSEE, THE ASSESSING OFFICER HAD SENT THE NOTIC E AT SOME DELHI ADDRESS WITH PIN CODE-110006, THEREFORE THERE IS DI SCREPANCY IN THE ADDRESS NOTED IN THE NOTICE U/S 143(2) OF THE ACT A ND ADDRESS ON WHICH DELIVERY IS MADE. FURTHER, IT WAS ARGUED THAT THE NAME OF THE ASSESSEE IS RAJEEV GOEL AND NOT RANJEEV GOEL AS BEA RING IN THE POSTAL RECEIPT AND THEREFORE IN SUCH CIRCUMSTANCES, IT CAN NOT BE PRESUMED THAT THE LD. ASSESSING OFFICER HAD DISCHARGED ITS O NUS. 3. IT WAS SUBMITTED THAT THE CASE OF THE ASSESSEE I S SQUARELY COVERED BY THE ORDER OF THE DELHI ITAT IN THE CASE OF M/S. MICRO SPACE MATRIX SOLUTION PVT. LTD., VS ITO IN ITA NO.669/DEL /2012 WHEREIN, IT HAS BEEN HELD THAT IF THERE ARE DISCREPANCIES IN TH E ADDRESS STATED IN THE NOTICE, ENVELOPE CONTAINING NOTICE AND THE ADDR ESS NOTED BY THE POST OFFICER, THEN THERE CANNOT BE ANY PRESUMPTION AS TO THE VALID SERVICE OF NOTICE. 4. THE LD. AR FURTHER PLACED HIS RELIANCE ON JUDGME NTS OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS LUNAR DIAMON DS LTD. (ITA NO.62 OF 2005), WHEREIN, THE HONBLE HIGH COURT UND ER SIMILAR FACTS 4 ITA NO. 1184/DEL/2019 AND CIRCUMSTANCES HAD DISMISSED THE APPEAL OF THE R EVENUE. IT WAS SUBMITTED THAT IN THAT CASE ALSO, THE ASSESSEE HAD FILED AFFIDAVIT REGARDING NON-RECEIPT OF NOTICE U/S 143(2) AND THER E WAS DIFFERENCE IN THE ADDRESS ON THE RECEIPT ISSUED BY POST OFFICE AN D THEREFORE, THE HONBLE TRIBUNAL HAD ALLOWED THE APPEAL OF THE ASSE SSEE WHICH THE HONBLE HIGH COURT HAD UPHELD. THE LD. AR ALSO RELI ED UPON A NUMBER OF CASE LAWS AS LISTED IN THE BRIEF SYNOPSIS FILED BY HIM. THE LD. AR FURTHER SUBMITTED THAT THE IN VIEW OF THE AB OVE FACTS AND CIRCUMSTANCES, THE ASSESSEE WAS NOT SERVED NOTICED U/S 143(2) OF THE ACT AND THEREFORE, ANY ASSESSMENT ORDER PASSED WITH OUT SERVICE OF NOTICE U/S 143(2) IS NULL AND VOID AS HELD BY THE H ONBLE SUPREME COURT IN THE CASE OF ACIT VS HOTEL BLUE MOON (2010) 321 ITR 362 (SC). IT WAS SUBMITTED THAT IN THAT CASE, THE HONB LE SUPREME COURT HAS CLEARLY HELD THAT IN ABSENCE OF SERVICE OF NOTI CE U/S 143(2) OF THE ACT, THE ASSESSMENT BECOMES NULL AND VOID. IT WAS S UBMITTED THAT HONBLE SUPREME COURT EVEN DEALT WITH THE PROVISION S OF SECTION 292BB AND HAS HELD THAT EVEN SECTION 292BB CANNOT C URE THE DEFECT OF NOT SERVING OF NOTICE U/S 143(2) OF THE ACT. IT WAS SUBMITTED THAT IN THE PRESENT CASE, THE ASSESSEE BEFORE THE ASSESSING OFFICER ITSELF HAD OBJECTED TO THE ASSESSMENT PROCEEDINGS, BECAUSE OF NON-SERVICE OF NOTICE AND THEREFORE, SECTION 292BB IS ALSO NOT APP LICABLE TO THE ASSESSEE. 5 ITA NO. 1184/DEL/2019 5. WITHOUT PREJUDICE, IT WAS ARGUED THAT THE NOTICE ISSUED BY THE ASSESSING OFFICER OF WARD 34(1) U/S 143(2) WAS NOT ISSUED BY THE JURISDICTIONAL ASSESSING OFFICER. IT WAS SUBMITTED THAT OFFICIAL ADDRESS OF ASSESSEE IS 1705, 3 RD FLOOR, ONKAR BHAWAN, BHAGIRATH PLACE, DELHI- 110006 AND JURISDICTION OF WHICH LIES WITH CIRCLE 4 7(1), NEW DELHI AND THE JURISDICTION AT THE TIME OF ISSUANCE OF NOTICE ALSO LIED WITH SUCH CIRCLE 47(1) AND OUR ATTENTION WAS INVITED TO COPY OF JURISDICTION CHART EXTRACTED FROM THE WEBSITE OF INCOME TAX DEPARTMENT PLACED AT PAPER BOOK PAGE NO. 301 TO 327. IT WAS SUBMITTED THAT THE ASSESSING OFFICER OF CIRCLE 34(1) DOES NOT HOLD JURISDICTION EVEN OVE R THE RESIDENTIAL ADDRESS OF THE ASSESSEE FOR WHICH THE ASSESSING OFF ICER OF CIRCLE 39(1) HOLDS THE JURISDICTION AND THEREFORE IT WAS ARGUED THAT THE NOTICE ISSUED BY NON-JURISDICTIONAL ASSESSING OFFICER IS L IABLE TO BE QUASHED. 6. REGARDING THE CONTENTION OF THE LD. CIT(A) THAT ASSESSEE SHOULD HAVE RAISED THE ISSUE WITHIN ONE MONTH OF NOTICE, I T WAS SUBMITTED THAT THE ASSESSEE COULD NOT HAVE KNOWN THAT THE NOT ICE HAS BEEN ISSUED BY A NON-JURISDICTIONAL ASSESSING OFFICER AS THE NOTICE ITSELF WAS NOT SERVED AND THUS COULD NOT HAVE FILED THE OB JECTION IN THIS REGARD. IT WAS SUBMITTED THAT THE NOTICE U/S 142(1) WAS DULY ISSUED BY CIRCLE 47(1) ONLY AND ACCORDINGLY NO OBJECTION W AS FILED AND FURTHER THE ORDER WAS PASSED BY THE ASSESSING OFFICER CIRCL E 47(1) AND THUS NO OBJECTION WAS FILED. IT WAS SUBMITTED THAT THE AFORESAID FACT CAME 6 ITA NO. 1184/DEL/2019 TO LIGHT OF ASSESSEE AFTER RECEIVING THE REMAND REP ORT AND IMMEDIATELY THEREAFTER OBJECTION WAS RAISED VIDE REJOINDER TO T HE REMAND REPORT. THUS, THERE IS NO BREACH OF SECTION 124(3) OF THE A CT. AS REGARDS THE CASE LAWS RELIED UPON BY THE LD. CIT(A), IT WAS SUB MITTED THAT THE THESE ARE DISTINGUISHABLE ON FACTS AS IN THE CASE O F MEGA CORPORATION LTD. IN ITA NO.128/2016 AND CIT VS KAPIL JAIN IN IT A NO.613 OF 2009 AND ABHISHEK JAIN VS ITO 94 TAXMANN.COM 355 (DEL.) NOTICE HAD BEEN SERVED UPON THE ASSESSEE AND ASSESSEE HAD FAIL ED TO RAISE THE OBJECTIONS WITHIN THE STIPULATED PERIOD PRESCRIBED U/S 124(3) OF THE ACT, WHEREAS, IN THE PRESENT CASE NO NOTICE WAS SER VED UPON THE ASSESSEE AS ALREADY DEMONSTRATED. 7. THE LD. AR, FURTHER, ARGUED THAT NO ORDER U/S 12 7 FOR TRANSFER OF CASE FROM ONE ASSESSING OFFICER TO ANOTHER ASSESSIN G OFFICER WAS PASSED, WHEREAS THE COMMISSIONER OF BOTH THE ASSESS ING OFFICER ARE DIFFERENT. IT WAS SUBMITTED THAT SUCH ORDER HAS TO BE PASSED BY CHIEF COMMISSIONER OR COMMISSIONER FROM WHOSE JURISDICTIO N, THE CASE IS TO BE TRANSFERRED. IT WAS SUBMITTED THAT CIRCLE-34 AND CIRCLE 47 ARE UNDER THE JURISDICTION OF DIFFERENT CCITS, THEREFOR E, THE ORDER U/S 127 WAS MANDATORY. THE LD. AR FURTHER ARGUED THAT THE C HIEF COMMISSIONER OF CIRCLE 34 ALSO DID NOT PASS ANY ORD ER U/S 127 TO TRANSFER THE CASE BACK TO THE CIRCLE 34 AND THEREFO RE THERE IS VIOLATION OF THE PROVISIONS OF SECTION 127 OF THE ACT AND THE REFORE, THE ORDER 7 ITA NO. 1184/DEL/2019 PASSED BY THE ASSESSING OFFICER, CIRCLE 47(1) IS NO T VALID AND LIABLE TO BE QUASHED. IN THIS RESPECT, RELIANCE WAS PLACED ON THE FOLLOWING CASES:- I. SHRI HARVINDER SINGH JAGGI VS ACIT IN ITA NO.672/DE L/2013 II. KIE INFRASTRUCTURES & PROJECTS (P.) LTD. VS ITO IN IT APPEAL NO.23(DEL) OF 2012. III. CABBANA INFRASTRUCTURE PVT. LTD. VS DCIT (ITA NO.18 3 AND 526/ASR./2017). IV. TATA SONS LTD. VS ACIT (ITA NO.4497 AND 4542/MUM/20 05) (MUM. TRIB.) 8. THE LD. DR ON THE OTHER HAND, VEHEMENTLY ARGUED THAT THE ARGUMENTS RAISED BY THE LD. AR ARE BASELESS AND ARE AIMED AT DEPRIVING THE REVENUE OF ITS LEGITIMATE SHARE. THE LD. DR FILED A COPY OF LETTER WRITTEN BY THE ASSESSING OFFICER, CIRCLE 47(1) AND ALSO STATED THAT COMPLETE ASSESSMENT RECORD WAS AVAILABLE WITH HIM. THE LD. DR FILED A PRINT OUT OF PAN DIRECTORY SHOWING THE ADDR ESS OF THE ASSESSEE AND SUBMITTED THAT WHILE FILING PAN APPLICATION, TH E ASSESSEE DULY MENTIONED ITS ADDRESS AS B-37, MAHARANA PRATAP ENCL AVE, PITAMPURA DELHI-110034 AND THEREFORE AS PER THE PAN RECORDS, NOTICE U/S 143(2) WAS GENERATED BY THE ASSESSING OFFICER WHERE THE PA N OF THE ASSESSEE LIED WHICH IN THE PRESENT CASE WAS ASSESSING OFFICE R CIRCLE-34(1). INVITING OUR ATTENTION TO THE COPY OF NOTICE, THE L D. AR SUBMITTED THAT THE SAME WAS GENERATED BY THE SAME ASSESSING OFFICE R WHERE THE PAN OF THE ASSESSEE WAS LAYING AND THE ASSESSEE FILED R ETURNS OF INCOME 8 ITA NO. 1184/DEL/2019 STATING THEREIN DIFFERENT ADDRESS AND IN THIS RESPE CT, INVITED OUR ATTENTION TO PAPER BOOK PAGE 5 WHERE A COPY OF RETU RN ALONG WITH ADDRESS MENTIONED ON IT WAS PLACED. THE LD. DR STA TED THAT ASSESSEE DID NOT INFORM THE ASSESSING OFFICER FOR CHANGE OF ADDRESS AND THEREFORE RAISING OF SUCH PLEA OF NOTICE BY A DIFFE RENT ASSESSING OFFICER DOES NOT HOLD GOOD. THE LD. DR PLACED HIS RELIANCE ON A DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF SKY LIGHT HOSPITALITY LLP (2018) 405 ITR 296 WHEREIN, THE HONBLE COURT HAD H ELD THAT WHERE THE NAME AND EVEN THE PAN NUMBER MENTIONED WERE INC ORRECT, HUMAN ERRORS AND MISTAKES CANNOT AND SHOULD NOT NUL LIFY PROCEEDINGS WHICH ARE OTHERWISE VALID AND WHERE NO PREJUDICE HAD BEEN CAUSED. THE LD. DR FURTHER PLACED HIS RELIANCE ON ORDER OF THE HONBLE DELHI HIGH COURT IN THE CASE OF ABHISHEK JA IN VS ITO (2018) 405 ITR 1, WHERE THE HONBLE HIGH COURT HAS HELD TH AT SUB-SECTION-3 OF SECTION 124 CLEARLY STATES THAT NO PERSON CAN CA LL IN QUESTION JURISDICTION OF AN ASSESSING OFFICER IN CASE OF NON -COMPLIANCE AND/OR AFTER THE STIPULATED IN CLAUSE (A) AND (B), AND THE REFORE, IT WAS ARGUED THAT AT THIS STAGE, THE ARGUMENTS OF THE ASSESSEE C ANNOT BE ACCEPTED AND IT WAS THEREFORE ARGUED THAT THE LD. CIT(A) HAS RIGHTLY DISMISSED THIS GROUNDS OF APPEAL. 9. THE LD. AR IN THIS REJOINDER SUBMITTED THAT THE ASSESSEE IS NOT UNDER ANY OBLIGATION TO INFORM THE ASSESSING OFFICE R REGARDING CHANGE 9 ITA NO. 1184/DEL/2019 OF ADDRESS AND IN THIS RESPECT RELIED UPON THE JUDG MENT OF HONBLE DELHI HIGH COURT IN THE CASE OF PR. CIT VS ATLANTA CAPITAL PVT. LTD. AND FILED A COPY OF THE DECISION. THE LD. AR SUBMI TTED THAT THE ARGUMENTS OF THE LD. DR THAT NOTICE U/S 143(2) IS G ENERATED BY THE ASSESSING OFFICER WHERE THE PAN NUMBER LIES ALSO GO ES IN FAVOUR OF THE ASSESSEE AS THE ASSESSING OFFICER WHILE ISSUING NOTICE U/S 143(2) HAS NOT APPLIED HIS MIND WHEREAS THE SECTION ITSELF REQUIRES THAT THE ASSESSING OFFICER SHOULD HAVE BEEN SATISFIED BEFORE ISSUING OF NOTICE U/S 143(2) AND IF THE ASSESSING OFFICER ISSUED NOTI CE U/S 143(2) WITHOUT TAKING INTO ACCOUNT THE RETURN FILED BY THE ASSESSEE, SUCH NOTICE ITSELF IS ALSO BAD IN LAW. 10. WE HAVE HEARD RIVAL PARTIES AND HAVE GONE THROU GH THE MATERIAL PLACED ON RECORD. WE FIND THAT IT IS CORRECT THAT T HE ASSESSEE OBTAINED HIS PAN NUMBER BY STATING RESIDENTIAL ADDRESS AS B- 37, MAHARANA PRATAP ENCLAVE, PITAMPURA DELHI-110034. PRINT OUT O F PAN DIRECTORY SHOWING THE ADDRESS AND PAN NUMBER OF THE ASSESSEE IS PLACED IN PAGE-4 OF PAPER BOOK FILED BY REVENUE. FURTHER, IT IS ALSO CORRECT THAT THE ASSESSEE FILED HIS RETURN OF INCOME BY STATING THEREIN ADDRESS AS 1705, 3 RD FLOOR, ONKAR BHAWAN, BHAGIRATH PLACE, DELHI-110006 , THEREFORE, IT IS AN UNDISPUTED FACT THAT THERE IS D IFFERENCE BETWEEN THE ADDRESS MENTIONED IN PAN DATA BASE AS WELL AS IN TH E RETURN OF INCOME FILED BY ASSESSEE. AS PER JURISDICTION CHART OF INCOME TAX 10 ITA NO. 1184/DEL/2019 DEPARTMENT IN DELHI, EXTRACTED FROM THE WEBSITE OF INCOME TAX DEPARTMENT, PLACED AT PAGE BOOK PAGE 301 TO 327, TH E JURISDICTION OF ASSESSEE AS PER HIS ADDRESS IN PAN APPLICATION IS W ITH ASSESSING OFFICER WARD 39(1). THE JURISDICTION OF THE ASSESS ING OFFICER, AS PER THE ADDRESS MENTIONED IN THE RETURN OF INCOME IS WI TH ASSESSING OFFICER CIRCLE NO.47(1) WHO HAS PASSED THE ASSESSME NT ORDER. THE NOTICE ISSUED U/S 143(2) HAS BEEN ISSUED BY THE ASS ESSING OFFICER CIRCLE 34(1) WHO IS NEITHER THE ASSESSING OFFICER O F ASSESSEE ON THE BASIS OF ADDRESS IN PAN APPLICATION NOR IS THE ASSE SSING OFFICER OF ASSESSEE AS PER ADDRESS MENTIONED IN THE RETURNS OF INCOME. 11. THE JURISDICTION CHART PLACED IN PAPER BOOK PAG E 308 REFLECTS THE AREA COVERED UNDER CIRCLE 34(1) WHICH INCLUDES SARAI PEPAL THALA, SHALIMAR BAGH(SOUTH), ASHOK VIHAR, WAZIR PUR, SAWAN PARK, NIMRI COLONY, MALKA GANJ. AT NONE OF THE PLACES MENTIONED ABOVE, THE ASSESSEE RESIDES OR DOES HIS BUSINESS. THEREFORE, THE NOTICE ISSUED BY THE ASSESSING OFFICER OF CIRCLE 34(1) IS HELD TO BE ILLEGAL AS THE ASSESSING OFFICER OF CIRCLE 34(1) HAD NO JURISDICTI ON ON THE ASSESSEE EITHER ON THE BASIS OF HIS RESIDENTIAL ADDRESS OR O N THE BASIS OF HIS BUSINESS ADDRESS. THE LD. DR ALSO COULD NOT PRODUCE ANY ORDER PASSED U/S 127 OF THE ACT EITHER BY THE COMMISSIONE R OF CIRCLE 34(1) OR COMMISSIONER OF CIRCLE 47(1) OF THE ACT. AS REGA RDS, THE CONTENTION RAISED BY THE LD. DR THAT THE ASSESSEE SHOULD HAVE APPROACHED THE 11 ITA NO. 1184/DEL/2019 ASSESSING OFFICER FOR CHANGE OF ADDRESS ALSO DOES N OT HOLD GOOD IN VIEW OF THE DECISION OF THE HONBLE DELHI HIGH COUR T IN THE CASE OF PR. CIT VS ATLANTA CAPITAL PVT. LTD., WHERE, THE HONBL E COURT HAS HELD AS UNDER:- 7. ON THE FACTS OF THE PRESENT CASE, IT IS SEEN TH AT NOTICE DATED 27TH MARCH 2008 UNDER SECTION 148 OF THE ACT WAS ISSUED TO THE ASSESSEE BY THE ASSESSING OFFICER ('AO') AT THE ADDRESS AT B-23 1, OKHLA INDUSTRIAL AREA, PHASE-I, NEW DELHI. ADMITTEDLY, THE ASSESSEE HAD SHIFTED FROM THAT ADDRESS WITH EFFECT FROM 1ST FEBRUARY 2005 TO A NEW ADDRESS AT B-115, SARVODAYA ENCLAVE, NEW DELHI. FOR AY 2005-06 AND TH E SUBSEQUENT AYS, THE ASSESSEE DISCLOSED HIS ADDRESS AS B-115, SARVOD AYA ENCLAVE, NEW DELHI. EVEN THE AO HAD SENT LETTERS TO THE ASSESSEE AT THE SAME ADDRESS ON 8 TH AUGUST 2007. THE INTIMATION UNDER SECTION 1 43(1) OF THE ACT DATED 25 TH JANUARY 2008 FOR AY 2006-07 WAS ALSO SE NT BY THE AO TO THE ASSESSEE AT THE SAME CHANGED ADDRESS I.E. B-115, SA RVODAYA ENCLAVE, NEW DELHI. THERE IS NOTHING TO SHOW THAT THE NOTICE UNDER SECTION 148 OF THE ACT WAS IN FACT ISSUED BY THE AO SHOWING THE AF OREMENTIONED CHANGED ADDRESS. 8. IT IS THE CONTENTION OF MR. N.P. SAHNI, LEARNED SENIOR STANDING COUNSEL FOR THE REVENUE, THAT THE NOTICE SATISFIED THE REQU IREMENT AS TO LIMITATION UNDER SECTION 149 (B) OF THE ACT. HOWEVER, AS NOTED BY THE ITAT, THE NOTICE ITSELF WAS NOT ISSUED AT THE CORRECT ADDRESS . THE FACT THAT THE SAID NOTICE, SENT BY SPEED POST, WAS NOT RETURNED UNSERV ED, WOULD BE TO NO AVAIL SINCE THE ADDRESS GIVEN IN THE NOTICE WAS NOT THE LAST KNOWN ADDRESS OF THE ASSESSEE. 9. MR. SAHNI THEN SUBMITTED THAT IT WAS INCUMBENT O N THE ASSESSEE TO HAVE GOT HIS CHANGED ADDRESS ENTERED IN THE PAN DAT A BASE FAILING WHICH THE AO WOULD ONLY GO BY THE ADDRESS GIVEN IN THE RECORD OF THE RELEVANT AY WHICH IN THE CASE IS AY 2001-02. 10. THE COURT IS UNABLE TO AGREE WITH THIS SUBMISSI ON. NO PROVISION IN THE ACT HAS BEEN SHOWN TO THE COURT WHICH OBLIGES T HE ASSESSEE TO ENSURE THAT HIS CHANGED ADDRESS IS ENTERED IN THE PAN DATA BASE FAILING WHICH HE IS PRECLUDED FROM INSISTING ON THE NOTICE UNDER SECTION 148 BEING ISSUED TO HIM AT THE KNOWN ADDRESS AND BEING SERVED UPON HIM. IN THE PRESENT CASE, ON FACTS, IT IS NOT IN DISPUTE THAT T HE AO WAS AWARE OF THE CHANGE OF ADDRESS OF THE ASSESSEE AND YET THE NOTIC E UNDER SECTION 148 OF THE ACT WAS ISSUED AT THE OLDER ADDRESS. 12 ITA NO. 1184/DEL/2019 11. MR. SAHNI SUBMITTED THAT THE ORDER OF THE CIT ( A) NOTES THE FACT THAT A PHOTOCOPY OF THE NOTICE WAS GIVEN TO THE ASSESSEE D URING THE RE- ASSESSMENT PROCEEDINGS AND THAT BY ITSELF SHOULD CO NSTITUTE SUFFICIENT SERVICE OF NOTICE ON THE ASSESSEE. IN LIGHT OF THE LAW EXPLAINED BY THE SUPREME COURT IN R.K. UPADHYAYA V. SHANBHAI P. PATE L (1987) 3 SCC 96 WHICH HAS IN TURN BEEN FOLLOWED BY THIS COURT IN CH ETAN GUPTA (SUPRA), THE REQUIREMENT OF BOTH THE ISSUANCE AND THE SERVIC E OF SUCH UPON THE ASSESSEE FOR THE PURPOSES OF SECTION 147 AND 148 OF THE ACT ARE MANDATORY 'JURISDICTIONAL REQUIREMENTS'. THE MERE FACT THAT AN ASSESSEE PARTICIPATED IN THE RE-ASSESSMENT PROCEEDINGS DESPITE NOT HAVING BEEN ISSUED OR SERVE D WITH THE NOTICE UNDER SECTION 148 OF THE ACT IN ACCORDANCE WITH LAW WILL NOT CONSTITUTE A WAIVER OF THE SAID JURISDICTIONAL REQUIREMENT. 12. ON FACTS, THEREFORE, THE COURT FINDS NO LEGAL E RROR COMMITTED BY THE ITAT IN HOLDING THAT THERE WAS NO PROPER SERVICE OF NOTICE ON THE ASSESSEE UNDER SECTION 148 OF THE ACT. 12. EVEN OTHERWISE, WE HAVE OBSERVED THAT THE ASSE SSING OFFICER OF CIRCLE 34(1) DID NOT HAVE JURISDICTION OVER THE ASS ESSEE NEITHER ON THE BASIS OF RESIDENTIAL ADDRESS NOR ON THE BASIS OF BU SINESS ADDRESS. THEREFORE, THE NOTICE ISSUED BY ASSESSING OFFICER O F CIRCLE-34(1) CANNOT BE SAID TO BE LEGAL AS IT HAS BEEN ISSUED BY A NON JURISDICTIONAL ASSESSING OFFICER AND THAT TOO WITHO UT ANY ORDER U/S 127 OF THE ACT. THE HONBLE DELHI ITAT IN THE CASE OF KIE INFRASTRUCTURES & PROJECTS (P.) LTD. VS ITO IN IT A PPEAL NO.23(DEL) OF 2012 HAS HELD AS UNDER:- WHERE IN CASE OF ASSESSEE, ASSESSING OFFICER AT WA RD 4 AGRA HIMSELF TRANSFERRED JURISDICTION OF CASE TO ASSESSING OFFIC ER AT WARD 5(3), NEW DELHI AND THERE BEING NO TRANSFER ORDER PASSED BY C HIEF COMMISSIONER OR COMMISSIONER, IT WAS A CASE OF VIOLATION OF PROVISI ONS OF SECTION 127 AND, THEREFORE, IMPUGNED ASSESSMENT ORDER PASSED BY ASSE SSING OFFICER, WARD 5(3), NEW DELHI WAS TO BE REGARDED AS VOID AB INTIO . 13 ITA NO. 1184/DEL/2019 13. SIMILARLY, LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF M/S BAJRANG BALI INDUSTRIES VS ACIT IN ITA NO.724/LKW/2 017, ORDER DATED 30/11/2018 HAS HELD AS UNDER:- 6. IN THE PRESENT CASE, THE RETURN OF INCOME WAS F URNISHED ON 30.09.2013. THE FINANCIAL YEAR IN WHICH THE RETURN WAS FILED EX PIRED ON 31.03.2014 AND THEREFORE, LAST DATE FOR ISSUE OF NOTICE WAS 30.09. 2014. THE STATUTORY PERIOD FOR ISSUANCE OF NOTICE U/S 143(2) EXPIRED ON 30.09. 2014 AND BY 30.09.2014 THE NOTICE U/S 143(2), WHICH WAS WITHIN THE PRESCRI BED PERIOD OF TIME, WAS ISSUED ONLY BY DCIT-IV, KANPUR WHO HAD NO JURISDICT ION OVER THE CASE, AS THE DCIT-IV HIMSELF HAD TRANSFERRED THE CASE TO DCI T-2, KANPUR VIDE MEMO DATED 20.08.2015, A COPY OF WHICH IS PLACED AT PAPE R BOOK PAGE 3. THEREFORE FROM THE ABOVE FACTS AND CIRCUMSTANCES, I T BECOME APPARENT THAT THE FIRST ASSESSING OFFICER WHO ISSUED NOTICE ON 30 .09.2014 HAD NO JURISDICTION TO ASSESS THE ASSESSEE AND, THEREFORE, HE TRANSFERRED THE CASE TO DCIT-2, KANPUR WHO THOUGH HAD JURISDICTION TO ASSES S THE ASSESSEE BUT ISSUED NOTICE U/S 143(2) ONLY ON 07.09.2015 BY WHIC H DATE PERIOD FOR ISSUANCE OF NOTICE HAD EXPIRED. WE FURTHER FIND THA T NO ORDER U/S 127 OF THE ACT WAS PASSED BY THE ASSESSING OFFICER TO TRANSFER THE CASE FROM KANPUR-4 TO KANPUR-2. THE ASSESSING OFFICER WHO HAD JURISDIC TION TO ASSESS THE ASSESSEE ISSUED NOTICE U/S 143(2) ONLY ON 07.09.201 5 WHICH WAS BEYOND THE PRESCRIBED TIME LIMIT FOR ISSUANCE OF SUCH NOTICE. THEREFORE, THE NOTICE ISSUED U/S 143(2) BY DCIT, KANPUR-2 BEYOND THE STAT UTORY PERIOD OF TIME IS WITHOUT JURISDICTION AND THEREFORE, ANY ORDER PASSE D IN CONSEQUENCE OF SUCH NOTICE IS ALSO LIABLE TO BE QUASHED. THEREFORE, WE ARE IN AGREEMENT WITH THE ARGUMENT OF LD. AR. ACCORDINGLY, ADDITIONAL GROUNDS OF APPEAL 5 TO 8 ARE ALLOWED. SINCE WE HAVE DECIDED THE LEGAL ISSUES, IN FAVOUR OF ASSESSEE THE GROUNDS ON MERITS OF THE CASE HAVE BECOME INFRUCTUO US AND HAVE NOT BEEN ADJUDICATED. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES & JUDI CIAL PRECEDENTS THE ARGUMENTS OF THE LD. AR IS ACCEPTED & NOTICE IS SUED BY ASSESSING OFFICER OF CIRCLE-34(1) IS HELD TO BE VOID-AB-INTIO. 14. MOREOVER, IF FOR A MOMENT, WE PRESUME THAT THE NOTICE ISSUED BY CIRCLE 34(1) ASSESSING OFFICER WAS VALID THEN ITS S ERVICE WAS NOT PROPER AS THE ADDRESS MENTIONED ON THE NOTICE PLACE D IN PAPER BOOK PAGE 253 IS B-37, MAHARANA PRATAP ENCLAVE, PITAMPUR A DELHI- 14 ITA NO. 1184/DEL/2019 110034, WHEREAS AS PER INDIA POST TRACKING REPORT, THE NOTICE HAS BEEN DELIVERED AT DELHI ADDRESS TO ONE RANJEEV GOEL WITH PIN CODE 110006. THERE IS DIFFERENCE BETWEEN THE ADDRESS MEN TIONED IN THE NOTICE WHICH IS PIN CODE 110034 AND TRACKING REPORT WHICH IS 110006 AND ALSO THERE IS DIFFERENCE IN THE NAME MENTIONED IN THE NOTICE WHICH IS RAJEEV GOEL AND THAT MENTIONED IN THE TRAC KING REPORT WHICH IS RANJEEV GOEL. THE COPY OF TRACKING REPORT IS PLA CED AT PAPER BOOK PAGE 254. THEREFORE, IN VIEW OF THESE FACTS, THE NO TICE, EVEN IF PRESUMED TO BE BY JURISDICTIONAL ASSESSING OFFICER HAS NOT BEEN SERVED PROPERLY. THE HONBLE DELHI HIGH COURT IN TH E CASE OF CIT VS LUNAR DIAMONDS LTD. (281 ITR 1) HAS DEALT WITH SIMI LAR SITUATION. THE FACTS OF THE CASE AND ITS DECISION IS REPRODUCED BE LOW:- . ON APPEAL BEFORE THE CIT(A), IT WAS CONTENDED BY THE ASSESSEE THAT IT HAD NOT RECEIVED UNDER SECTION 143(2) OF THE INCOME TAX ACT, 1961 ALLEGEDLY SENT BY REGISTERED POST. AN AFFIDAVIT TO THIS EFFECT WAS FILED. IT WAS CONTENDED THAT THE RECEIPT ISSUED BY THE POST O FFICE DID NOT BEAR THE ADDRESS OF THE ASSESSEE BUT ONLY ITS NAME. IT WAS, THEREFORE, SUBMITTED THAT THERE WAS A POSSIBILITY THAT THE CORRECT ADDRE SS OF THE ASSESSEE MIGHT NOT HAVE BEEN WRITTEN ON THE ENVELOPE AND, THEREFOR E, THE QUESTION OF SERVICE OF NOTICE ON THE ASSESSEE DID NOT ARISE. TH E CONTENTION OF THE ASSESSEE WAS ACCEPTED BY THE COMMISSIONER (APPEALS) AND IT WAS HELD THAT THERE WAS NO VALID SERVICE OF NOTICE ON THE AS SESSEE AND, THEREFORE, THE ASSESSMENT FRAMED WAS INVALID. ON APPEAL TO THE HIGH COURT, HELD DISMISSING THE APPEAL FILED BY THE REVENUE: 'WE MAY ALSO POINT OUT THAT THERE APPEARS TO BE SOM E DOUBT WHETHER THE NOTICE WAS AT ALL SENT TO THE ASSESSEE BECAUSE, AS OBSERVED BY THE COMMISSIONER OF INCOME-TAX (APPEALS ), THE RECEIPT SHOWING THAT AN ENVELOPE WAS SENT BY REGIST ERED POST MERELY CONTAINED THE NAME OF THE ASSESSEE WITHOUT I TS ADDRESS. CONSEQUENTLY, IT IS QUITE POSSIBLE THAT THE NOTICE MAY HAVE BEEN SENT TO THE ASSESSEE AT SOME WRONG OR EVEN SOME INC OMPLETE ADDRESS. HOWEVER, IT IS NOT NECESSARY FOR US TO GO INTO THIS QUESTION AT ALL BECAUSE THE ASSESSEE HAD FILED AN A FFIDAVIT 15 ITA NO. 1184/DEL/2019 STATING THAT IT HAD NOT RECEIVED THE NOTICE AND THE TRIBUNAL RIGHTLY HELD THAT UNDER THESE CIRCUMSTANCES, THE BU RDEN WAS UPON THE APPELLANT TO PROVE THAT NOTICE WAS SERVED UPON THE ASSESSEE WITHIN THE PRESCRIBED TIME. THE APPELLANT HAD FAILED TO PROVE ITS CASE IN THIS REGARD.' THE ABOVE CASE SQUARELY APPLIES TO THE FACTS OF THE INSTANT CASE. IN THE INSTANT CASE ALSO, THERE IS NO REASON TO BELIEVE TH AT THE NOTICE WAS SENT TO THE ASSESSEE BECAUSE THE POSTAL RECEIPT SHOWINGTHAT AN ENVELOPE WAS SENT BY SPEED POST MERELY CONTAINED THE NAME OF THE ASSE SSEE WITHOUT ITS ADDRESS. CONSEQUENTLY, IT IS QUITE POSSIBLE THAT TH E NOTICE MAY HAVE BEEN SENT TO THE ASSESSEE AT SOME WRONG OR EVEN SOME INC OMPLETE ADDRESS. THE ASSESSEE HAS FILED AN AFFIDAVIT STATING THAT HE HAD NOT RECEIVED THE NOTICE. HENCE, APPLYING THE RATIO, THE NOTICE U/S 143(2) IS VOID. THEREFORE, ON THIS GROUND ALSO THE ASSESSEE SUCCEED S AS IN THIS CASE ALSO THE SERVICE OF NOTICE WAS NOT PROPER. 15. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, T HE LEGAL GROUND TAKEN BY THE ASSESSEE IS ALLOWED. NOTHING WAS ARGUE D ON THE MERITS OF THE CASE AND THEREFORE, MERITS OF THE CASE HAS NOT BEEN ADJUDICATED. 16. IN THE RESULT, APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26/0 9/2019. SD/- SD/- [SUDHANSHU SRIVASTAVA] [T.S. KAP OOR] JUDICIAL MEMBER ACCOUNTANT MEMBER DELHI; DATED: 26/09/2019. F{X~{T? F{X~{T? F{X~{T? F{X~{T? FA FA FA FA P.S P.SP.S P.S COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI